Summary
In Hammack, the ALJ entered a finding of fact that the claimant had failed to prove by a preponderance of the evidence that she suffered a worsened condition following her termination from employment or that such worsened condition, instead of her voluntary resignation, caused her wage loss.
Summary of this case from In re Burkhart v. First Transit Transp., W.C. NoOpinion
W.C. No. 4-637-865.
October 23, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated May 22, 2006 that denied the claim for additional temporary total disability benefits (TTD). We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant, prior to suffering an admitted industrial injury, was placed by the employer on a "plan of remediation" following concerns with her job performance. She sustained a compensable injury to her low back and left arm on April 30, 2004, following which an authorized treating physician imposed restrictions prohibiting lifting, carrying, pushing and pulling over 30 pounds. The claimant returned to work at a modified job. On September 30th a meeting occurred between the principal and the claimant to discuss her progress under the remediation plan. The claimant asked what would happen if she did not continue to improve under the plan. The principal informed the claimant that in that event her employment could be terminated or she could resign. The claimant immediately resigned, indicating that she would be unable to meet the improvement goals of the remediation plan. The ALJ concluded that the claimant was responsible for her termination from employment.
On October 14, 2004 an authorized treating physician determined that the claimant was at maximum medical improvement (MMI). On June 21, 2005 a Division-sponsored independent medical examination (DIME) physician concluded that the claimant was not at MMI. On September 1, 2005 the authorized treating physician reevaluated the claimant and imposed different physical restrictions, including restrictions against lifting, carrying, pushing or pulling over 10 pounds. On March 13, 2005 the treating physician reexamined the claimant and determined that the claimant was at MMI and should return to the DIME physician. At hearing the DIME physician testified that she could not state that the claimant had suffered any worsening of condition. The DIME physician could not comment on appropriate restrictions at the time she was initially determined to be at MMI on October 14, 2004, but she thought that the September 1, 2005, restrictions would have been appropriate at the time of the DIME in June 2005.
As noted, the ALJ concluded that the claimant was responsible for her termination from employment, and therefore not entitled to TTD pursuant to § 8-42-103(1)(g), C.R.S. 2006, and § 8-42-105(4), C.R.S. 2006 (termination statutes). Those statutes contain identical language stating that "[i]n cases where it is determined that a temporarily disabled employee is responsible for termination from employment, the resulting wage loss shall not be attributable to the on-the-job injury."
The ALJ also concluded that the claimant failed to prove by a preponderance of the evidence that she suffered a worsened condition following her termination from employment or that any such worsened condition, instead of her voluntary resignation, caused her wage loss. The ALJ therefore reasoned that the claimant's entitlement to TTD was not "revived" under the termination statutes and he denied the claim for TTD benefits after her termination.
On appeal the claimant does not contest the ALJ's determination that she was responsible for her termination and therefore not entitled to TTD under the termination statutes. However, she contends that the ALJ erred in requiring her to prove that her condition worsened following her termination from employment and that that worsening caused her wage loss. The claimant argues that she was not required to show an actual worsening of her condition in order to obtain TTD after being terminated for cause and that under the termination statutes all that is necessary is to show a causal connection between the industrial injury and the wage loss. Hence, as we understand the claimant's argument, she contends that the mere showing of additional restrictions was sufficient to reestablish the causal connection between the injury and the wage loss. We disagree that under the circumstances of this case the ALJ erred.
Having found that the claimant was responsible for the termination of her employment within the meaning of the termination statutes, the ALJ then correctly considered the application of Anderson v. Longmont Toyota, Inc., 102 P.3d 323(Colo. 2004) in determining whether the claimant's right to TTD was reestablished. In Anderson the court held that the termination statutes did not constitute a permanent bar to the receipt of TTD following a discharge from employment for cause. Rather, although a claim for TTD was barred when the termination caused the wage loss, a claim was not barred "when the worsening of a prior work-related injury incurred during [the] employment causes the wage loss." Anderson, 102 P.3d at 326. In reaching this conclusion, the court relied on the statutory authority to reopen a workers' compensation award for a worsened condition contained in § 8-43-303, C.R.S. 2006. See also El Paso County Dep't of Social Servs. v. Donn, 865 P.2d 877, 879 (Colo.App. 1993). The court therefore concluded that the General Assembly intended § 8-42-105(4) to weed out wage loss claims subsequent to voluntary or for-cause termination of modified employment that do not involve a worsened condition. However, the court also concluded that the General Assembly did not intend to modify the authority to reopen by creating a permanent bar to the receipt of TTD, even after a worsening of the claimant's condition.
The claimant cites Martinez v. Denver Health, W.C. 4-527-415 (August 8, 2005) in arguing that the ALJ erred by focusing on whether her condition had worsened. In Martinez we noted that Anderson did not specifically address the evidence necessary to prove that a worsened condition is the cause of a wage loss. We also noted that the imposition of physical limitations or restrictions, which did not exist at the time of the termination, could support a finding that the claimant's condition had worsened. However, we did not mean to suggest in Martinez that such additional restrictions compelled an award of additional TTD. Rather, we also noted there that the principle guiding each of these cases is that a wage loss is "caused by a worsened condition." We have since noted that we do not understand Anderson to have changed the legal principle regarding what constitutes proof of a worsening condition. Davis v. Trans-Colorado Concrete W.C. Nos. 4-456-522, 4-592-957, 4-627-378 4-627-379 (January 4, 2006). We do not read Martinez as support for the claimant's proposition that there is no requirement to show an actual worsening of a condition in order to obtain TTD after being terminated for cause under the termination statutes.
The question of whether new restrictions resulting from a worsened condition have caused the claimant's wage loss following a termination from employment remains one of fact for determination by the ALJ. Proof of the causal connection between the injury and the wage loss may be by lay or medical evidence. Cf. Lymburn v. Symbios Logic, 952 P.2d 831, 833 (Colo.App. 1997); Wujcik v. City of Colorado Springs, W.C. No. 4-122-742 (August 28, 1998).
Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The ALJ entered a finding of fact that the claimant had failed to prove by a preponderance of the evidence that she suffered a worsened condition following her termination from employment or that such worsened condition, instead of her voluntary resignation, cause her wage loss. We note that, since he entered factual findings concerning the additional restrictions imposed by Dr. Baptist, he was aware that the work restrictions were changed after her termination. However, as the ALJ found, the DIME physician could not state that the claimant had suffered any worsening of condition. Tr. at 19 20. Further the DIME physician testified that work restrictions are not a good way to evaluate a patient's condition. Tr. at 21. The ALJ credited this testimony, and because his resulting findings of fact are supported by substantial evidence they must be upheld. Further, because the findings support the legal conclusion that the claimant was not entitled to TTD, the order must be affirmed. As the respondent points out, the mere imposition of restrictions does not compel the conclusion that there was a worsening. Hernandez v. The Bailey Company W.C. No. 4-425-073 December 31, 2003. And, as noted, the mere imposition of changed restrictions does not, by itself, compel the conclusion that the claimant is entitled to TTD. Although increased restrictions certainly could support such a conclusion, they do not require it. Even though the claimant's physical restrictions had changed, the ALJ was still required under Anderson to determine whether the claimant's condition had worsened and the causal connection between the claimant's wage loss and termination from employment had ended. The ALJ resolved that factual question against the claimant and we are not in a position to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated May 22, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
________________________________ Thomas Schrant
Sharon Hammack, Elbert, CO, Falcon School District #49, Falcon, CO, Pinnacol Assurance, Harvey D. Flewelling, Esq., Denver, CO, (For Respondents).
Ruegsegger, Simons, Smith Stern, LLC, Vito Rancanelli, Esq., Denver, CO, (For Respondents).
Hueser and Hueser, LLC, Gordon Hueser, Esq., Colorado Springs, CO, (For Claimant).